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The defendants instituted claims worth R2 billion against the South African government for damages suffered resulting from Zimbabwean land grabs 20 years ago, and actions by the previous president of South Africa that contributed to the dissolvement of the Southern African Development Community (SADC) Tribunal.
The question before the Constitutional Court was whether the landowners were out of time in bringing their action for damages, as claims for damages against the state had to be brought within three years from the debt becoming due.
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Prescription means that a debt expires. The ruling sets aside previous orders by the High Court and Supreme Court, which found in favour of the farmers on the prescription issue.
Dr Theo De Jager, executive board chairperson of the Southern African Agri Initiative (SAAI), said he was utterly disappointed by the ruling of the Constitutional Court: “It is shameful that such a technical point should stand in the way of justice and fairness.”
Barend Uys, head of intercultural relations and co-operation at AfriForum, agreed. He explained that the case was bought against the South African government because of former president Jacob Zuma’s role in suspending operations of the SADC Tribunal in 2011, and the adoption of a new protocol in 2014 that limited the tribunal’s jurisdiction to disputes between member states.
“Without the tribunal, land grab victims no longer had a channel through which they could seek justice,” Uys said.
The South African High Court declared Zuma’s participation in the suspension of tribunal operations and his signing of the 2014 protocol unlawful, irrational, and unconstitutional in March 2018, and this order was confirmed by the Constitutional Court in December that year and directed the president to withdraw his signature from the 2014 protocol.
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Respondents delivered a notice to institute a damages action against Zuma in December 2018, which Zuma contended was not delivered within the six-month time prescribed by the Institution Act. The respondent then served their summons, together with a condonation application for their failure, to comply timeously with the six-month time bar in April 2019.
Uys pointed out that the Constitutional Court now dismissed the matter, arguing that the claims should have been instituted six months after the 2014 or 2015 actions, when the respondents became aware and first suspected the then-president’s actions were unconstitutional.
The respondents, however, felt that they could hold the South African government accountable after the court found the president’s actions unconstitutional in 2018.
AfriForum and SAAI are both committed to continue the fight for justice for victims of land grabs.
“Courts in Europe and the US have recently awarded compensation and legal costs against the government of Zimbabwe, setting precedents in international law and leaving Zimbabwean state assets vulnerable to seizure,” Uys said.
“Article 14 of the African Charter on Human Rights and People’s Rights clearly states that the right to property shall be guaranteed. Article 21 of the charter states that people shall not be deprived of their wealth and that in case of spoliation, the dispossessed people shall have the right to the lawful recovery of property and adequate compensation. Our legal team will study the judgment and we will determine a path forward.”
Uys said AfriForum and SAAI were working hard to get the SADC Tribunal restored to allow individual cases again: “Pressure is mounting both in the international arena and in the SADC region for the restoration of the SADC Tribunal in Windhoek. Countries merely have to appoint judges to get the tribunal back to action again.”
De Jager said farmers found comfort in the certainty that all expropriation without compensation ultimately had the same outcome: “No matter where or when it happened, in the end justice prevailed. Just like the restitution programme in South Africa today compensates people who were dispossessed of land by legal means, though unjust, during apartheid, the day will come when government will be held accountable for its blunders.”
